Imagine being charged with a crime and then learning that the police destroyed the very evidence you needed to prove your innocence. That is exactly what happened to Ms. Duncan. And in a decision that every Canadian should know about, the Court refused to let the trial proceed.
In R v Duncan, 2026 ABCJ 5, the Alberta Court of Justice granted a stay of proceedings after finding that police had destroyed the alleged counterfeit bank notes at the centre of the prosecution before the defence ever had a chance to examine them. The decision is a powerful reminder that the right to a fair trial is not merely a procedural nicety. It is a constitutional guarantee, and when the state negligently destroys the evidence a person needs to defend themselves, the courts will act.
At the Ziv Law Group, we closely follow decisions like this because they directly affect how we defend our clients. Understanding when evidence destruction becomes a Charter violation, and what remedies are available, can mean the difference between conviction and freedom.
The Facts What Actually Happened to Ms. Duncan?
The case arose from two separate incidents at the same store, just two days apart. Here is how the key events unfolded:
The Issue Why Destroying Those Notes Changed Everything
Without the physical bank notes, the Crown turned to documents and witness testimony to prove its case. But here is where the prosecution ran into serious trouble on two fronts.
Problem One — The Documents Failed the Legal Test
The Crown tried to rely on documents from the RCMP analysis to prove the notes were counterfeit. Section 461 of the Criminal Code sets out the specific requirements for how counterfeit currency must be proved in court. The Court found that the Crown’s documents simply did not meet those statutory requirements. The paper trail, on its own, was not enough.
Problem Two — The Charter Was Violated
The defence mounted a more fundamental challenge: destroying the bank notes violated Ms. Duncan’s rights under the Canadian Charter of Rights and Freedoms.
The defence could not examine the notes, test their physical characteristics, or put them before the Court. Multiple witnesses had testified that they identified the notes as counterfeit partly based on how they felt – rough, papery, different from genuine currency. Without the actual notes, those descriptions could not be tested, challenged, or verified by anyone, including the Justice herself.
The Analysis What the Court Said
The Justice was direct in her analysis. She found that the alleged counterfeit bank notes were not just important evidence; they were, in all likelihood, the most important evidence in the entire case. She put it this way:
I find it would or should have been clear to the police here that the banknotes alleged to be counterfeit were essential evidence. Perhaps no other evidence could be more important in a case alleging possession or uttering counterfeit currency. Given the critical relevance of the evidence, it was incumbent on the police to take reasonable care to ensure the banknotes were not destroyed.
The Court’s reasoning flowed naturally from this finding. If the notes were the most critical possible evidence in a counterfeiting case, and they undeniably were, then the police were under an obligation to preserve them with reasonable care. They did not. The destruction was, at a minimum, a product of negligence.
Because the defence could not examine the notes or use them at trial, Ms. Duncan was prevented from fully and meaningfully defending herself. That is not a fair trial. Under s. 24(1) of the Charter, the Court has the power to grant whatever remedy it considers appropriate and just when Charter rights are violated. In this case, the remedy was a stay of proceedings — the most significant remedy available in criminal law, permanently halting the prosecution.
Stay of Proceedings Granted
A stay of proceedings is not an acquittal, but its practical effect is the same. The prosecution is permanently halted. Ms. Duncan will not be tried. The charges are, for all intents and purposes, over. This outcome was a direct consequence of the police’s failure to preserve essential evidence.
Significance Why This Decision Matters
R v Duncan is a significant decision for anyone who has been charged with a criminal offence — or who may face charges in the future. It reinforces several core principles of Canadian criminal law:
Police Have a Duty to Preserve
When officers seize physical evidence, they take on a legal responsibility to ensure that evidence remains available for the accused, the defence, and the court. This is not optional; it flows from the constitutional right to a fair trial.
Negligence Has Consequences
The police did not need to act in bad faith for a Charter breach to occur. The Court found that failing to take reasonable care to preserve obviously critical evidence was enough to trigger constitutional remedies.
Your Right to Full Answer and Defence
Every person charged with a criminal offence has the right to make a full answer and defence to examine the evidence against them, test it, and challenge it. That right is meaningless if the evidence has been destroyed before trial.
Courts Will Enforce the Charter
When the Crown cannot justify a violation of an accused’s Charter rights, courts have both the power and the willingness to impose real remedies, up to and including stopping a prosecution entirely.
The broader message of R v Duncan is straightforward: the integrity of the criminal justice system depends on all parties, including the state, playing by the rules. When police fail in their obligation to preserve evidence, it is not only the accused who suffers. It is the public’s confidence in the fairness of the entire process.
What This Means for You Has Evidence Been Lost in Your Case?
If you are facing criminal charges, the question of what evidence the Crown has, and equally, what evidence may have been lost, destroyed, or improperly handled, is one of the most important questions your defence lawyer should be asking from day one.
Evidence destruction or loss is not always immediately apparent. It can come to light during disclosure review, in the course of cross-examining police officers, or through targeted applications for production of records. An experienced criminal defence lawyer will know where to look and what questions to ask.
If you believe that physical evidence relevant to your case has been destroyed, lost, or withheld, you should raise this with your lawyer immediately. Depending on the circumstances, you may have grounds for a Charter application and potentially a stay of proceedings, just as Ms. Duncan received. Do not assume the Crown has done everything correctly.